Callous PIOs & Failing Appellate Authorities
It is sad that at every step the RTI Act is being diluted. Non-performance of duty diligently by the Public Information Officers is the reason for first appeal and the irresponsibility of First Appellate Authority is cause for second appeal. Disinclination of Commissioner to initiate penalty proceedings often compels the appellants to knock the doors of High Courts for justice. It is fortunate that there was a positive response at High Court, in the case discussed herein below.
A Public Information Officer, PIO, (at Central public authorities he is called CPIO) is an important statutory functionary under Right to Information Act. However, he is not given any importance by the public authority. The law envisages independent functioning of PIOs to apply minds to the request for information, apply the law to the information sought, examine if any exception is attracted and then decide whether to give information within 30 days or not.
But generally, they are at the thumb of their bosses, never allowed to act independently. They are at the risk of penalty if information is denied without justification. They are at receiving end from both the applicants and the officers above them. The Information Commission can make a PIO responsible for unjustifiable denial. Neither the government nor the public authority trains them. They are not given powers, funds, and furniture.
This is one-side of the story. Some PIOs have strong mind bent upon not giving any information. They do not respond, allow 30 days to lapse, do not care about the first appeal to authority within the department, that generally takes the stand of the PIO anyhow. They say, let Information Commission direct, then we will see. This is the prevalent attitude of the PIOs in general, and that is the main problem with implementation of the fifteen-year-old RTI Act. Most of them are callous!
We can admonish and advise to apply mind, without imposing penalty on the first set of PIOs for their inability to give information, but the second set of PIOs deserve punishment. They are fortunate that imprisonment provision was removed from the draft. Otherwise, they would have been jailed for malicious, or negligent denial of information. They deserve maximum penalty.
The Story Of Harassment
An RTI applicant, Sureshchandra Maneklal Dholakiya was compelled to file a writ petition before the Gujarat High Court to get some information which he otherwise could have been provided without any problem under the RTI Act. The saga of the 87-years old applicant resulted in Gujarat High Court's command on 10th September 2020, to State Information Commission to start penal proceedings against the callous Public Information Officer.
On 19th April 2018, Dholakia, a resident of Gujarat had asked for some specific details under the RTI Act and had required certain documents which the Public Information Officer and Mamlatdar, Bhachau refused, on the ground that such information pertains to third party, and therefore, it is privileged information under Section 8(1)(d) of the Right to Information Act. As usual, the first appellate authority (FAA) did not respond to the appeal filed against the denial. Most of the times the First appeal is a time killer without serving any purpose. The Act expected that the FAA would act as a filter to prevent appeals to escalate to Information Commission level, which is outside and independent of public authority. First Appeal provides a scope for the public authority to review the decision of denial within the same organization so that information seeker is not unnecessarily pushed to take next step.
Another major hurdle in seeking information is the Information Commission, where most of the Commissioners in most of the appeals, if inclined to give information, are not interested in penalizing the PIOs even if they notice the illegality and lack of justification for not sharing information.
Gujarat State Information Commission found reason in second appeal, discovered that request was rejected callously, and allowed the appeal directing the public authority to furnish the information asked for. The only stand, which was taken before the State Information Commissioner was that the information pertained to the third party, and thus could not be provided in view of Section 8(1) (d) of the Right to Information Act. The PIO never said that information was destroyed or not available. The SIC did not agree with that. The State Information Commissioner had also made drastic remarks against the authority for not supplying the required documents. But the SIC was lenient towards the PIO and the public authority. It did not even give a show cause notice to start the penalty proceedings against the PIO. Emboldened with this lenience, the PIO took flip flap stands to defy the direction of the Commission.
Surprisingly, after the direction of the State Information Commissioner, the public authority took altogether different stand that the information was not available, saying that it had no record to be produced before the State Information Commissioner, as that was destroyed or was not available. The public authority in its affidavit in reply to the writ petition stated that on account of an earthquake, the area of Bhachau had faced considerable damage even to the government offices and hence, information was not available with the authority.
The Petitioner submitted that this flip flop by the authorities for not providing the information, right from the beginning till the passing of the order by the State Information Commissioner, should not be accepted.
The High Court acknowledged the conflicting stand of the respondent authorities, more particularly the Public Information Officer, at the relevant time, before the State Information Commissioner that the information, as sought for by the petitioner, pertains to the third party. The court was critical about this kind of attitude of the PIO. It said:
"As against that stand, now, stand being taken that the record is not available cannot be accepted by the Court. At the first stage when the response was given to the petitioner by the Public Information Officer as well as State Information Commissioner about the information of the third party, and therefore, not provided would be at the presumption that the respondent authorities had the record with them and after perusal of such record have found that the information sought for by the petitioner is missing, and thereafter, change their stand of no record being available. Therefore, the same cannot be accepted by this Court."
By changing its stand, the PIO gave rise to a suspicion that the record was available at the time of filing of application under RTI, but after the positive direction by the State Information Commission to give the information, they invented a plea of non-availability, for which they preferred to use 'earthquake' as an excuse. The High Court concluded: "Therefore, there is no hesitation in holding in aforesaid fact situation that the respondent authorities more particularly, Public Information Officer and Mamlatdar, Bhachau has acted in a callous manner as a result of which the petitioner had been deprived of from the right of Right to Information."
Justice A.Y. Kogje observed,
"The Court is of the view that this is a fit case where the proceedings under Section 20 of the Right to Information Act needs to be initiated in view of non-compliance of the order passed by the State Information Commissioner as well as the casual manner in which the application of the petitioner to seek the right to information under the Right to Information Act has been dealt with."
The matter was relegated back to the State Information Commissioner to initiate proceedings under Section 20 of the Right to Information Act.
Another point that was missed by the High Court is that even under the third party excuse, the information cannot be denied. The RTI Act mandates the PIO to consult the third party, giving him an opportunity to explain his objections against such disclosure. If the objection is not convincing, the PIO has to share the information after giving a notice of such decision to the third party. Further, before consulting the third party, the PIO must justify his conclusion how it was considered as third-party information. However, there was no such examination in this case.
Changing a stand after the SIC directed that the information be divulged, is absolute fraud on the RTI Act. He is liable on two counts- one, for unjustifiable denial of information under the RTI Act, and two, for non-compliance of the order of the SIC. Section 20 of RTI Act makes the PIO liable on these two counts.
The appellant needed the documents he sought under RTI, to use them in a pending litigation.
It is not sure whether story, that has come back to State Information Commission, ends there with delivery of information.
Views are personal
M Sridhar Acharyulu